A funny thing happened on the way to Parliament

John Wood

When the then Commonwealth ombudsman, Allan Asher, announced his resignation on October 20 last year, as a result of the controversy over his scripting of questions for Greens senator Sarah Hanson-Young (about the lack of funding for his office), he said the resignation would take effect on October 28 so he could complete his annual report for 2010-11. Yet when the report was received by the relevant minister, Gary Gray, on December 23, 2011 (and later tabled in Parliament on February 7, 2012), it was transmitted under the signature of the then acting ombudsman, Alison Larkins.

The Ombudsman Act requires that the ombudsman present an annual report to Parliament. The ombudsman at the end of the period covered - i.e. June 30, 2011 - was Asher. He had said he would complete his report before his resignation taking effect. So what happened to it?

The calm before the storm: then ombudsman Allan Asher in his Canberra office in July 2011. Photo: Alex Ellinghausen

I sought a copy of Asher's report under the Freedom of Information Act and was initially sent a copy of Larkins's tabled version. A further request was made for Asher's version, and I was informed sometime later that my request was refused on the grounds that the draft report and a document called ''Chapter 1 Ombudsman's review'' were exempt under section 47C(1) of the FOI Act, which says material concerning the deliberative processes of an agency may be exempt from disclosure (my emphasis). In making that decision, the decision-maker said:

In reaching this view [that the material is deliberative in nature], I note that the annual report of this agency is the document submitted by the appointed agency head to the relevant minister and tabled in Parliament in accordance with the Ombudsman Act 1976. This report reflects the opinion of that appointed person on the operations of the agency in the preceding financial year.

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Indeed, the ombudsman's report should do just that. And as Asher was the ombudsman on June 30, 2011, it was his opinion that should have been transmitted to the Parliament!

I sought an internal review of the decision from the ombudsman's office, and the decision-maker again refused my request, this time on the grounds:

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… that the document you seek does not exist or cannot be found. In my view, your request explicitly seeks a version of the annual report which was finalised by the former ombudsman, Mr Asher, during his final week as ombudsman.

The decision-maker was either being pedantic or mischievous. Whatever the reason, the ombudsman's office had certainly not abided by the objects of the FOI Act, nor the requirements to help the applicant.

In the meantime, I had lodged a request for a review by the Office of the Australian Information Commissioner and a complaint about the way my request had been handled. I provided an extract from a speech Asher gave at a human rights conference in Melbourne on July 20 this year, in which he said:

In a passage I wrote for the 2011 ombudsman annual report, I said: ''The consequence of the large and rapid growth in irregular maritime arrivals is that, in relation to the work of the immigration ombudsman and in the absence of substantial additional resources to my office, I am unable to provide overall assurance to the public and the Parliament that fair and accountable administrative action is being taken by responsible Australian government agencies."

I am unable to provide a footnote for this reference, as the text above is not included in the published annual report.

In a footnote, Asher added:

The Parliament and the public are entitled to hear the opinions of the ombudsman on the work and problems facing the office during the year addressed by the annual report.

In fact, the tabled annual report differs in many respects from the final draft I approved.

This confirmed my assertion that Asher's annual report for 2010-11 was submitted and differed from that published by the acting ombudsman.

Finally, in September, I was informed by the information commissioner's office that the ombudsman's office had decided to vary the decision and would release a draft annual report dated November 23, 2011 in full. Asher's report contained comment and opinion critical of the government that, significantly, did not appear in Larkins's published version. For example, in the foreword, he said:

However, while our workload and responsibilities increase, government revenue to my office is not keeping up. As an Australian government agency we are not alone in having to tighten our belts, but any reduction in our funding has consequences. We exist to improve government administration and the better we are able to help agencies do their job the less taxpayers' money is wasted.

Less funding makes it harder to honour our commitments to vital work such as fostering and maintaining relationships with key stakeholders, in particular the community, business groups and the agencies whose conduct we investigate.

This is important because it is not my office but the agencies themselves that have the power to provide remedies, and it is always more effective and productive to work cooperatively with agencies in making that happen. Fewer resources also makes it harder for my office to engage with socially excluded people who should be complaining to us but don't or even can't.

Further on, in the first chapter of his report, Asher observed that, in relation to its role as immigration ombudsman:

Our office is required to review and report to the immigration minister and the Parliament the circumstances of immigration detainees held for more than two years. In addition, we have an arrangement with the government to undertake similar reviews for detainees after six, 12 and 18 months.

Funding provided to my office for our work in relation to irregular maritime arrivals was agreed in 2008, at a time when they were at an expected 100 arrivals a year. Currently, there are more than 4700 irregular maritime arrivals in immigration detention. More than 3200 detainees have been in immigration detention for more than six months, making a case-by-case assessment of such long-term detainees and impossible task.

The consequence of the large and rapid growth in irregular maritime arrivals is that, in relation to the work of the immigration ombudsman and in the absence of substantial additional resources to my office, I am unable to provide overall assurance to the public and the Parliament that fair and accountable administrative action is being taken by responsible Australian government agencies [my emphasis].

These opinions, which are a crucial part of the ombudsman's role, were missing from Larkins's report. The Parliament and the public are entitled to hear the opinions of the ombudsman on the work and problems facing the office during the year addressed by the annual report. Clearly, in this instance, they were deprived of this insight.

John Wood is the director of Baljurda Comprehensive Consulting and a former deputy Commonwealth ombudsman. He founded the national freedom of information legislation campaign in 1976. Disclosure: he is a friend and colleague of Allan Asher.